In a scathing rebuke Monday of a ruling supported by Chief Justice Roberts against abortion restrictions, Associate Justice Clarence Thomas wrote that the landmark Roe v. Wade ruling has no constitutional basis and must be overruled.
Thomas issued the dissent in the Supreme Court’s 5-4 decision in June Medical Services v. Russo to strike down a Louisiana law. The law requires that individuals who perform abortions at clinics have admitting privileges in a nearby hospital.
The majority found the law unconstitutional, concluding it places an undue burden on women seeking abortions.
But in his 20-page dissent, Thomas called the right to an abortion an erroneous precedent grounded in a “legal fiction.”
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“This Court created the right to abortion based on an amorphous, unwritten right to privacy, which it grounded in the ‘legal fiction’ of substantive due process,” Thomas wrote. “As the origins of this jurisprudence readily demonstrate, the putative right to abortion is a creation that should be undone.”
Thomas pointed out that the Supreme Court in the 1965 Griswold v. Connecticut case acknowledged the Constitution did not protect a right to privacy. Instead, the court “explained that this right could be found in the ‘penumbras’ of five different Amendments to the Constitution — the First, Third, Fourth, Fifth, and Ninth.”
“Rather than explain what free speech or the quartering of troops had to do with contraception, the Court simply declared that these rights had created ‘zones of privacy’ with their ‘penumbras,’ which were formed by emanations from those guarantees that help give them life and substance,” Thomas wrote.
“This reasoning is as mystifying as it is baseless.”
Thomas said “the idea that the Framers of the Fourteenth Amendment understood the Due Process Clause to protect a right to abortion is farcical.”
He pointed out that in 1868, when the Fourteenth Amendment was ratified, a majority of the states and numerous territories had laws that limited, and in many cases nearly prohibited, abortion.
“It would no doubt shock the public at that time to learn that one of the new constitutional Amendments contained hidden within the interstices of its text a right to abortion,” Thomas wrote. “The fact that it took this Court over a century to find that right all but proves that it was more than hidden — it simply was not (and is not) there.”
Thomas criticized Roberts for claiming to adhere to stare decisis, or precedent. It’s the legal doctrine that gives deference to previous decisions.
Thomas argued the justices exceed their constitutional authority whenever they “apply demonstrably erroneous precedent instead of the relevant law’s text.”
“Because we can reconcile neither Roe nor its progeny with the text of our Constitution, those decisions should be overruled,” Thomas asserted. “Because we lack jurisdiction and our abortion jurisprudence finds no basis in the Constitution, I respectfully dissent.”